Questions raised over legality of Govt compulsorily acquiring land
…after gazetted notice of land takeover for Demerara bridge
The gazette notice announcing the Public Infrastructure Ministry’s intention to appropriate land for the construction of the new Demerara River Bridge has raised questions, particularly since the Government is a caretaker administration.
According to Former Attorney General Anil Nandlall, the move to acquire private land for public works is governed by strict laws that must also be observed in tandem with the Constitution of Guyana. He noted that acquiring land in such circumstances should only be a last resort and questioned the rush to do this when a design for the bridge has not even been completed.
Since the supreme law, the Constitution guarantees the protection of private property as a fundamental right and freedom of the citizenry. The rule of law, naturally, mandates that any law which authorises the confiscation of private property must enjoy strict and scrupulous compliance whenever such a process is being embarked upon.
Additionally, since the rule of law frowns upon any concept that facilitates the State compulsorily acquiring private property, such a process must only be embarked upon as a matter of last resort, and those affected must be adequately consulted and compensated in the end. Against this background, certain elementary but crucially vital questions must inexorably be posed in relation to the actions of (Public Infrastructure Minister) David Patterson, Nandlall said.
One of the fundamental questions he raised was whether a Government defeated by a No-Confidence Motion in the National Assembly and mandated to call snap elections can lawfully perform such an act.
He pointed out that the Government never received an extension from Parliament and moreover, elections are due in March 2020, at which time reversing any harmful policies might be difficult for a new Government.
“In my respectful opinion, the answer is a resounding “no”! Professor Peter Hogg, in the text Constitutional Law of Canada Vol 1, at page 9.4B writes: ‘For the caretaker period…in matters of policy, expenditure and appointments, the Government should restrict itself to activity that is: (a) routine or, (b) non-controversial or, (c) urgent and in the public interest or, (d) reversible by a new Government without undue cost or disruption or, (e) agreed upon by the Opposition.”
“I must swiftly point out that these restrictions apply to a caretaker government of which this Government is not. This Government’s caretaker status expired on the 18th September 2019, at best. Currently, therefore, they do not enjoy even that limited legitimacy with which a caretaker government is cloaked. This Government’s existence is utterly and absolutely extra-constitutional and unlawful.”
Nandlall noted that as a consequence, every decision the Government makes or contract executed can be deemed as unlawful. In addition, he questioned the urgency of the move, considering the incomplete designs that make assessing the size of land impossible and the cloud under which the Ministry is executing the project.
He added, in fact, Patterson has been found guilty by the Public Procurement Commission (PPC) of spending nearly $200 million (despite) the Procurement Act, “to single-source a contractor to do a feasibility study in respect of this project. In short, this project is far away from even its embryonic stages. So, a case cannot be made out for urgency”.
A related issue, he noted, is the reason for embarking upon a course of action at this pre-emptive stage of elections, which a new Government might find it impossible to lawfully reverse. “At this juncture, I can confirm that the Opposition has not been consulted, nor is it in agreement with this course of action by Mr Patterson”.
Nandlall noted that when one considers the lengthy process that must be followed including consultations, negotiating compensation and approval from the National Assembly for that compensation before the land is acquired, there is no logic behind the decision.
“The only rational explanation is that the move to acquire these lands is but yet another publicity gimmick to convey the false impression that a new Demerara River crossing is on the electoral horizon,” Nandlall said.
According to the Order that was signed by Patterson and released on December 16, the lands are being acquired for public purposes to construct access roads for a new bridge. On the East Bank of Demerara, 55.623 acres of the land in question comprising of tracts ‘RR’, ‘RR1’, ‘RR2’, ‘RR3’, Parcel 184, 4727, sub-parcel 4220A and sub-parcel 204A, being portions of Plantation Houston and Ruimveldt are being acquired.
Meanwhile, Schedule 2 speaks to 36.37 and 7.43 acres of land at Plantation Versailles, West Bank Demerara, also being acquired. Furthermore, 23.9 acres of land located at Plantation Goed Fortuin, Versailles, Malgre Tout, Klien Pouderoyen, Grant 7042 and 7043, at the rear of Plantation Vreed-en-Hoop are also up for compulsory acquisition.